STOCK AGREEMENT
STOCK AGREEMENT, dated as of July 31, 1995, among The Walt Disney
Company, a Delaware corporation ("Purchaser"), Berkshire Hathaway, Inc.,
a Delaware corporation ("BH") and Thomas S. Murphy (solely for purposes
of Section 1.04 hereof).
WHEREAS, as of the date hereof subsidiaries and affiliates of BH
(the "Shareholders") own (either beneficially or of record) 20,000,000
shares of common stock, par value $0.10 per share ("Company Common
Stock"), of Capital Cities/ABC Inc., a New York corporation (the
"Company") (all such shares and any shares hereafter acquired by the
Shareholders prior to the termination of this Agreement being referred
to herein as the "Shares");
WHEREAS, concurrently herewith, the Purchaser and the Company are
entering into an Agreement and Plan of Reorganization (as such Agreement
may hereafter be amended from time to time, the "Merger Agreement"),
pursuant to which, upon the terms and subject to the conditions thereof,
Merger Sub B (as defined in the Merger Agreement) will be merged (the
"Company Merger") with and into the Company; and
WHEREAS, as a condition to the willingness of the Purchaser to
enter into the Merger Agreement, the Purchaser has requested that each
Shareholder agree, and, in order to induce the Purchaser to enter into
the Merger Agreement, each Shareholder has agreed to grant the Purchaser
proxies to vote such Shareholder's Shares;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements set forth herein
and in the Merger Agreement, the parties hereto, intending to be legally
bound, hereby agree as follows:
ARTICLE I
SECTION 1.01. TRANSFER OF SHARES. Until the close of business on
the date of the special meeting of shareholders called to consider and
vote upon the Company Merger (the "Special Meeting") and except as
otherwise provided herein, BH will cause each Shareholder not to (a)
sell, pledge or otherwise dispose of any of its Shares, (b) deposit its
Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Shares or grant any proxy with respect
thereto or (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect acquisition or sale,
assignment, transfer or other disposition of any Company Common Stock.
SECTION 1.02. VOTING OF SHARES; FURTHER ASSURANCES. BH will
cause each Shareholder, by this Agreement, with respect to those Shares
that it owns of record on the record date for voting at the Special
Meeting, to vote such shares (or to execute written consents with
respect to such Shares) (i) in favor of the adoption of the Merger
Agreement and approval of the Company Merger and the other transactions
contemplated by the Merger Agreement, (ii) against any Alternative
Proposal (as defined in the Merger Agreement) and (iii) in favor of any
other matter necessary to consummation of the transactions contemplated
by the Merger Agreement and considered and voted upon at the Special
Meeting. BH will cause each Shareholder to cause the Shares owned by it
beneficially to be voted in accordance with the foregoing. BH
acknowledges receipt and review of a copy of the Merger Agreement.
SECTION 1.03. NO SOLICITATION. Prior to the Effective Time, (a)
BH shall not permit any Shareholder or any subsidiary of any Shareholder
or any of their respective officers, directors, employees, agents and
representatives (including, without limitation, any investment banker,
attorney or accountant retained by it or any of its subsidiaries) to,
initiate, solicit or encourage, directly or indirectly, any inquiries or
the making or implementation of any proposal or offer (including,
without limitation, any proposal or offer to the Company's shareholders)
with respect to an Alternative Proposal (as defined in the Merger
Agreement) or engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any
person relating to an Alternative Proposal, or otherwise facilitate any
effort or attempt to make or implement an Alternative Proposal and (b)
BH will cause each Shareholder to notify the Purchaser immediately if
any such inquiries or proposals are received by, any such information is
requested from, or any such negotiations or discussions are sought to be
initiated or continued with, it.
SECTION 1.04. PRIOR PROXY. Thomas S. Murphy hereby agrees to
relinquish all rights with respect to, and to not exercise any rights or
powers pursuant to, the proxies given by the Shareholders pursuant to
that certain Agreement dated July 2, 1986 among Capital Cities
Communications, Inc., a New York corporation, and the Shareholders, as
amended, and releases each Shareholder from any further liability or
obligation thereunder to the extent necessary to comply with this
Agreement.
ARTICLE II
SECTION 2.01. NOTICES. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to
have been duly given or made as of the date delivered, mailed or
transmitted, and shall be effective upon receipt, if delivered
personally, mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like changes
of address) or sent by electronic transmission to the telecopier number
specified below:
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(a) If to the Purchaser:
The Walt Disney Company
500 South Buena Vista Street
Burbank, CA 91521
Attention: General Counsel
with a copy to:
Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
Attention: Morton A. Pierce
Telecopier No.: (212) 259-6333
(b) If to a Shareholder, at the address set forth on
Schedule I hereto.
Berkshire Hathaway, Inc.
1440 Kiewit Plaza
Omaha, NE 68131
Attention: Warren E. Buffett
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Samuel C. Butler
Telecopier No.: (212) 474-3700
SECTION 2.02. HEADINGS. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 2.03. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any
rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest
extent
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permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 2.04. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of
them, with respect to the subject matter hereof.
SECTION 2.05. CERTAIN EVENTS. BH agrees that this Agreement and
the obligations hereunder shall attach to each Shareholder's Shares and
shall be binding upon any person to which legal or beneficial ownership
(as such term is applied under Rule 13d-3 of the Exchange Act) of such
Shares shall pass, whether by operation of law or otherwise.
Notwithstanding any transfer of Shares, the transferor shall remain
liable for the performance of all obligations under this Agreement of
the transferor.
SECTION 2.06. ASSIGNMENT. This Agreement shall not be assigned
by operation of law or otherwise.
SECTION 2.07. PARTIES IN INTEREST. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall
confer upon any person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
SECTION 2.08. SPECIFIC PERFORMANCE. The parties hereto agree
that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or in equity.
SECTION 2.09. GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York,
without giving effect to principles of conflicts of laws.
SECTION 2.10. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be
an original but all of which, taken together, shall constitute one and
the same agreement.
SECTION 2.11. TERMINATION. This Agreement shall terminate
automatically immediately upon termination of the Merger Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
THE WALT DISNEY COMPANY
By: /s/ Michael D. Eisner
----------------------------
Name: Michael D. Eisner
Title: Chairman of the Board
and Chief Executive Officer
BERKSHIRE HATHAWAY, INC.
By: /s/ Warren E. Buffett
----------------------------
Name: Warren E. Buffett
Title: Chairman of the Board
and Chief Executive Officer
/s/ Thomas S. Murphy
----------------------------
Thomas S. Murphy
(solely for purposes of
Section 1.04 hereof)
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